[3] The Full Court of the Federal Court in Pratt Holdings Pty Ltd v Commissioner of Taxation recognised the advice privilege - that third party communications can be protected by legal professional privilege – building upon the original litigation privilege which applied only top content that would only be used in potential litigation

But is a non-legal adviser considered an agent protected by privilege?

Esso appealed to the Federal Court in 1996 against amended income tax assessments

Esso disputed the privilege status of certain documents which would have been communicated for the purpose of legal advice

Issues:

Gleeson CJ, Gaudron and Gummow JJ: The obvious tension between this policy and the desirability, in the interests of justice, of obtaining the fullest possible access to the facts relevant to the issues in a case lies at the heart of the problem

Use of a sole purpose or dominant purpose test?

Which of the two tests balances the justification of the privilege with the need to access relevant information? In this case, it is that of sole purpose

[8]Abrogation by statute: Does not represent a yield in privilege – it abolishes it. Parliament can only abrogate privilege by statute